For those who don’t know me, I read. A lot. I’m in two book clubs and average probably a book a week. Last year I read a wonderful book called “Still Alice” by Lisa Genova. It’s a book written from the point of view of a woman with early onset Alzheimer’s disease. It was well written and an interesting story, but it also focuses on something that is all too common, the inability of a loved one to make decisions for themselves. The book doesn’t touch on the legal complications that can arise with incapacitation, but I, of course, will.
When a person no longer is able to remember where they live, generally, they are not in a position where they can remember their medications, decide if they should be living in their house, or determine if they should take money out of their IRA. This means someone else must make these decisions for them and hopefully make the decisions that person would have made for themselves. But who makes those choices for them if they’re not capable?
In the best case scenario, they’ve already made arrangements for someone to take over in a power of attorney or have set up a trust. In which case a person they’re decided upon simply begins to act for them with the legal document. However, many people don’t have these documents.
Without them, a person must go to probate court and file for a guardianship or conservatorship over the incapacitated or disabled person. Guardianship is the process where a person is given control over the care and custody of another, whereas conservatorship is the process where a person is given control over another’s finances. In both types of cases, the information needed for filing is extensive, including a full report of the person’s assets/income and an assessment by a doctor.
After filing, an attorney (the guardian ad litem) must be appointed for the disabled/incapacitated person. This attorney is completely separate from any attorney hired by the family or loved ones to file the legal documents. What this means is often two attorneys are involved, which of course means two sets of legal fees.
Next, a hearing is schedule where the court will hear evidence on why the incapacitated/disabled person needs a guardian/conservator. Generally, this occurs a week or two after the petition has been filed. The judge overseeing the hearing will eventually make the decision on what powers the guardian/conservator will be granted and will only grant that person the powers necessary for the incapacitated/disabled person’s wellbeing. These powers are issued through the letters of guardianship/conservatorship.
However, that does not end the probate court’s supervision. After a conservator is appointed, that person must then inventory the disabled person’s assets. If property must be sold or leased, the conservator must also petition the court before taking action. The conservator/guardian must also file an annual report with the probate court detailing the actions of the guardian/conservator over the year. For a conservator this includes a detailed accounting of the incapacitated person’s assets.
Without the proper estate planning, an already difficult situation of an incapacitated loved one, becomes a lot more complicated and expensive, including legal proceedings, multiple attorneys, and continuing court supervision. Essentially, while the disabled/incapacitated person is alive (and perhaps well after depending on their other estate planning) the probate court will be involved. Hopefully, we never find ourselves or a loved one disabled or incapacitated, but planning for it will make it that much easier if it does happen.